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41st Congress. ) HOUSE OF EEPEESENTATIVES. i Mis. Doc. 

2d Session. | ' ) No. 8. 



TEST OATH IN VIEGINIA. 



PAPERS 



REL.A.T1VP: TO 



THE TEST OATH IN VIRCtIIIA. 



Deckmber 11, 1883. — Referred to tlie Committee on Reconstruction and ordered to be 

printed. 



The Committee on Reconstruction aslc leave of the Souse to cause thefolloic- 
incj ]X(pers, tchich ivere laid before the committee in the matter of the 
admission of Virginia to reiyresentation in Congress^ &c., to Tje printed for 
the use of the House : 

1. General Cauby's report to tlie Secretary of War, relative to the 
election in Virginia in July, 1SG9. [Copy not fnrnisbed tHe Printer,] 

2. The address of the republican central committee, iiresented to the 
Senate by C. H. Porter, chairman. 

3. The statement of Mr. Hnghes, indorsed by Mr. Witcher. 

4. The statement of Governor Wells. 

5. The memorial of the committee of the Virginia legislature, pre- 
sented by Hon. Z. Turner, speaker. 

C. Statement of Governor Walker before the committee. 

7. Opinion of Attorney General Hoar on the affairs. 

There were also about fifty affidavits before the committee from per- 
sons in various parts of the State, charging, in some instances, a failure 
on the part of the registering officers to register, and a refusal in others 
to permit the affiants to vote when registered; and that in other instances 
threats from persons on the conservative side, and intimidation, were 
resorted to to prevent persons from voting the republican ticket, and 
that they were prevented from so doing. 



Address of the rcind)lican State convention held in Richmond^ Virginia, 
on the 24:th and 2oth of November^ 18G9, relative to the election in that 
State on the Gth of July last. 

To the President of the Senate: -'^ 

The following address to the Congress of the United States was 
adopted by the rei)ublican State convention held in Kichmond, Vir- 
ginia, on the 24th and 25th of November, 18G9, and, in pursuance of a 
resolution passed by the convention, I respectfully request that it may 
now be i)reseuted to yoiu' honorable body. 

) CHAELES H. POETEE, 

' ' President of Convention. 



2 TEST OATH IN VIRGINIA. 

In Kkpl'ulican State Convi':ntion, 

Jlkhmond, Virginia, November 25, 1889. 
To the Congress of the Unilcd States : 

The ropuljlicau party of Virginia, iu full delegated State convention assembled, rc- 
speetfully represent tliat the election held in this State on the 6th day of July last 
resulted in a confederate triumph, which we unhesitatingly assert was achieved by art- 
ifice, intimidation, and fraud. Threats of violence prevented the exercise of free dis- 
cussion during the canijiaign ; in some instances our meetings were broken up by mobs, 
the leaders of which have, as yet, gone unpunished. The colored people, dependent 
upon their labor for supj)ort, were threatened with loss of labor; and a war of exter- 
minaticm, even, was not unfrec|uently held out before them incase they voted the sepa- 
rate chniscs and the republican ticket. 

We believe that the secret of our defeat can be found in the unfortunate submission 
to a separate vote of the test-oath and disfranchising clauses of the St;ite constitution, 
in direct conflict with the uctiou of our constitutional convention and in opposition to 
the deliberate and unanimous opinion of the rank and tile of the rcpuldicau party of 
Virginia. 

Whih; we have the greatest confidence in the statesmanship and re])ublieanism of the 
President and a majority of Congress, we believe that tliey were deceived as to the true 
situation of affairs in our State; and that no one, however superior otherwise may be 
his opjiortunities, can rightly understand our situation except by experience ; and wo 
further believe that in expressing the truth as Ave know it, we shall not be considered 
faciious, but as doing cur plain and simple duty, and our Avholeduty, to the State and 
the nati( n 

Under the system of intimidation resorted to iu 1837, when a vote was taken for and 
against a convention, 12,(587 colored voters abstained from voting out of a registered 
colored vote of 105,832 ; while in the late election out of a registered coloi-ed vote of 
120,103, 22,198 failed to vote — a proportionate increase of 8,500 over the number which 
did not vote in 18(57. Out of the 93,145 colored voters wiio were not intimidated in 1867, 
all of them except 638 voted "for a convention," while 61,249 white votes were cast 
" against a convention" out of the 76,084 votes polled at that election. These figures 
show who iire the friends of the reconstruction policy inaugurated by Congress. In the 
light of these facts woidd it be, just to yourselves or the nation to permit the men who 
but yesterday were fighting to destroy our republican institutions, to assume political 
control in Virginia, when it is an absolute certainty that they will defeat the recon- 
struction policy of Congress and the spirit of tlie constitution lately so unanimously 
adopted with the same unanimity Avith which they spurned the fourteenth consti- 
tutional amendment in 18661 

We ask that it ]iass into the history of our nation, and be recorded to our honor, 
that, despite blandishments and threats, 84,000 nuui in the Old Dominion did in the 
year 1869 declare by their votes that treason was a crime and slionld hc2>iniisjied hij disfran- 
chisement and exclusion from office. 

Our constitution, from which the test-oath and disfranchising clauses have been 
stricken, was framed by a convention of the loyal people of Virginia. Tlu>y believed 
that the spirit of the reconstruction acts required them to insert those clauses in the 
constitution, and that in so doing they were but following the example of your honor- 
aide body, as given us in those acts and the fourteenth amendment. We still believe 
that those restraints should not have been removed before the rights of the loyal Union 
men of Virginia had been secured. 

We submit further that if the so-called conservative party is permitted, in opposi- 
tion to the laws of Congress, to gain the control of the State, the fifteenth auu'udment 
to the Constitution of the United States will probably fail. There is no i)robal)ility, 
from the political comidexion of the legislature, that it Avould ever re -ratify tluxt 
amendment, and there are at. least grave doubts whether the ratification of that body 
(illegally constituted and organized as we believe it to have been) was of any force 
Avhat<'A er. Even if the fifteenth amendment should be adopted, an educational or 
proiierty ([ualification prescribed by the legislature of Virginia Avould destroy the 
entire iniluence of colored suft'rage, and they would enact that not a single man of the 
120,000 colored voters wlio reside in Virginia should either hold otfiee or sit in the jury- 
box. 

We would most respectfully ask that your honorable body guarantee a republican 
form of governnu'ut. to Virginia, either by ordering a new election and by submitting 
the Avhole constitution to a vote of tlie people, or by requiring the test oath of the 
members of Ihe legislature, and awarding the seats of those who cannot take it to 
those eligible oi)poneuts who received the next highest vote, where the circumstances 
show that the electors must have known that they were casting their votes for ineligi- 
ble candidates. In the event of a new election, we Avould ask for a military force 
sufficient to protect us in tuir political and civil rights. 

The so-called legislifure which recently assembled in Richmond Avas not only an 
illegal body according to the laws of Congress, but also according to the opinion of the 



TEST OATH IN VIRGINIA. 6 

Attorney General of the Uuite\l States, which says : " The k^gishxtnro is not entithxT, and 

conhl not without violation of law be allowed to transact uivj hndricss, pass any act or 

resolve, or niulertake to assume any other functions of a le<>islature if the test oatli has 

;_ not been required of its members ;" in fact that it could do notliing except to organize, 

^and ratify tlie fourteenth and fifteenth amendments without taking the oath. 

^ The legislature did, liowevei-, pass resolve after resolve, but strangely omitted to pass 
^ the resolutions ottered congratulating the nation on the republican victories in the 
,^ northern and western elections, and pledging themselves to carry out the new constitu- 
tion. They fZ/fZ /ra»srtc<t^ie very important. &«s(Hess of electing two United States sena- 
tors, and permitted the officers of the legislature to take their seats without taking the 
test oath, contrary to the opinion of the Attorney General. 

We are exceedingly anxious that the turmoil and strife incident to our present coq- 

.' dition should cease. We desire a speedy admission into the Union of States, but ear- 

' iiestly protest that said admission be in accordance with law and in furtlun-ance of good 

government and human rights. We have not the slightest coutidence in the professions 

of the so-called conservative leaders given to the President, and to members of your 

' honorable body, simply because they have publicly proclaimed that the whole affair 

was a trick to deceive Congress and the President, and to bring the State into the 

Union. 

We would, therefore, respectfully call upon you to decide whether you will maintain 
your own laws and save loyalty and loyal nuni, or suffer them to be violated, and thus 
extinguish the last liope of re])ublican liberty in Virginia. 

This is perhaps our last contest. On your decision loyalty in Virginia Jives or dies. 
If you decide against us no one will dare to avow his republicanism, the pernicious ex- 
ample s,dt here will extend to other southern States, the colored people will again be 
at tlie mercy of their former masters, the national debt will be repudiated, and the rebel 
democratic yoke may probably be placed on the necks of the American people in 1372. 
In the name of the one hundred thousand radical republicansof Virginia, who fought 
the gallant fight of the 6th of Jnly last against the artifice and hatred of their enemies, 
andagainst the distrust and opposition of men who should have been their friends, we 
call upon the Congress of the United States, at this crisis in our State and national 
history, to remember the grand history it has made for itself and the nation during the 
past nine years, not by temporizing policies and half-way expedients, but by measures 
radical, bold, and just. We ask you to remember the noble pledge of the President, 
made on the 4th of March last, when, amid the thundering plaudits of assembled thou- 
sands, he declared that " the greatest good to the greatest number demands security 
for person and property, and for political opinion, in every part of our common country." 
We request you to remember the untold treasure spent to save the nation in its tre- 
mendous conflict, and the heroic sufferings and dauntless bravery of those sons of the 
nation who on quarter-deck and battle-field yielded their heart's blood to redden the 
crest of the billow and the bayonet of their foemen. 

Let the Congress of the United States again and speedily strike ponderous blows for 
loyalty, justice, and right! — and all Avill be well. 



Statement of R. W. Riighes, Chairman Bepiihlican State Committee of Vir- 
ginia. 

Willard's Hotel, 
Washington City., December 11, 18G9. 

Sir: Of the two hundred and twenty thousand votes cast in Virginia 
upon the State constitution, about one hundred and thirty-seven thou- 
sand were cast against tlie clause imposing the iron-clad oath. 

The republican party went into the canvass with Governor AVells 
pledged against this oath, and with every one of its newspapers advo- 
cating its exi)urgation from the constitution. At the election twenty 
thousand republicaifs cast their votes against this oath'; and a much 
larger number would have voted in the same way, but for the proscrip- 
tive and denunciatory course pursued by their adversaries in tlie can- 
vass. The test-oath clause was a measure on which the republicans of 
Virginia agreed to differ. I myself refused to enter the canvass at all, 
and (lid not write a line, until after the appearance of this Gardner let- 
ter of Governor Wells. The test oath is not an issue which can be 
called a republican issue in Virginia. 



4 TEST OATH IX VIRGINIA. 

At a meeting of those republicans who were in Washington, lield a 
few nights ago, (the 8th,) myself in the cliair, a resolution was adopted 
asking the immediate admission of the State, with the application of 
such oaths to the legislature as Congress should decide were required by 
the acts of reconstruction. I thouglit all i)resent were pledged to that 
resolution; but I understand that those who advocate more extreme 
views claim the right to carry their extreme demands before the Eecon- 
struction Committee. The demand for extreme measures, (such as the 
application of the test oath, the unseating of returned members who 
cannot take it, and the seating of those receiving the next highest 
votes, or the holding of new elections,) made by extreme men, is fac- 
tious, and brings disrepute upon the republican party of Virginia. It 
destroys all chance of obtaining the enforcement of moderate conditions 
as the price of admission; and I, therefore, as chairman of the commit- 
tee, (whose action was represented by Mr, Hine at my request on Thurs- 
day last,) withdraw the resolution of that committee, and with it all 
opposition to the immediate admission of the State; leaving it for Con- 
gress to take such steps or precautions in that behalf as to its wisdom 
may seem best. 

E. W. HUGHES, Chairman. 

Hon. B. F. Butler, 

Chairman, ttc. 

Representing as I believe a large and respectable element of the white 
republicans of the eighth congressional district of A'irginia, I fully con- 
cur with the above views. 

Y. A. WITCHER. 



Letter from Hon. H. H. ^V€Us. 

RlCIOIOND, YlKCJINlA, 

December 10, 1860. 

My Dear Sir: I had hoped there would be, at the opening of Con- 
gress, no division of sentiment in Washington on the subject of the 
immediate restoration of Virginia, and am surprised at what occurred 
before the Beconstruction Committee on yesterday. 

We have arrived, it seems to me, at a stage in the work of reconstruc- 
tion when it is utterly idle to attempt the correction of any evil which 
may exist here by a longer denial of federal representation to the State. 
No conservative or democrat will be made a republican; no bitterness 
will be assuaged ; no ostracism be abated ; nor any si)irit of amnesty be 
encouraged, or oblivion for the past be secured, by either an exclusion 
of the State or iiulividuals from any of the rights which belong to the 
most favored of States or citizens. Whether such desirable results were 
ever likely to be secured by test oaths and disfranchisements or not, it 
is certain they can have no such operation from this time forward. 

If we are evfjr to secure prosperity in our material interests, harmony 
in our social relations, or justice and equality in ])olitical rights and 
privileges, it nuist be done by such a universal act of notable amnesty 
as deprives every man of the last vestige of excuse for inflicting injustice 
upon others in retaliation for wrongs or political disabilities suffered by 
himself. One may donbt the issue, or even believe that such a measure 
of liberality will fail of any happy results ; still it is the only refuge now 
left, and wise men ought not to hesitate about making the trial. It 
should be done, too, in no ungracious spirit, but fully, freely, and with 



TEST OATH IN VIRGINIA. 5 

the broadest generosity. It is idle to find fault with or cavil at the 
meaus or way by which we have been brought to this condition. It is 
entirely immaterial how the lepublican party Avas defeated, nor shall 
we be likely to contemplate its overthrow more graciously by longer 
indulging in animosity, bitterness, or recrimination. I sincerely hope 
that Virginia may be restored before the week ends without a single 
dissenting vote; that before the Christmas holidays, by one single act 
of amnesty, the disabilities of every citizen of this commonwealtli may 
be removed. The policy of selecting here and there individuals for 
relief, not because of their superior claims, but rather on account of the 
friends tliey have "at court," or the diligence with which they move 
their suit, is plainly unwise and manifestly unjust; it tends largely to 
aggravate the irritation already existing. The two hundred men whose 
disabilities are in this way removed are not thereby rendered any more 
the friends of the government than they were before, while all the other 
unrelieved find in this last act of unjust congressional discrimination a 
new cause of more substantial complaint, dislike, and bitterness. 

It is useless longer to rely upon half measures. Sever the knot by 
one blow. Untie all hands by one word. If this policy does not snc- 
ceed, then no other can attbrd any reasonable hope of a better result. 1 
hope that you will do all in your power to secure the success and early 
adoption of this policy. 

I remain, my dear sir, yours trulv, 

H. H. WELLS. 

Col. E. W. Hughes. 



Memorial of members of the Virginia legislature. 

comimittee eooms, 
Committee Geneeal Assembly of Vieginia, 

WasMngton, December 8, 18G9. 
The undersigned, a committee api)ointed by more than two-thirds of 
the general assembly of Virginia, to urge upon Congress the claims of 
Virginia to prompt admission into the Union, respectfully represent 
that on the Gth of Jul^^, 1809, the people of Virginia, with a degree of 
unanimity almost unparalleled, adopted the constitution which had been 
framed by the republican convention which met in Richmond on the 
3d day of December, 1807, with the exception of two clauses, which the 
President and Congress, by submitting to a separate vote, permitted the 
people to reject. Tliis constitution the people voted for almost unani- 
mously ; it is in all respects in strict conformity with the reconstruction 
laws of Congress, is republican in all its features, and establishes in the 
State " the equality of all men before the law," and provides, among 
other things, for the establishment of a comprehensive system of "free 
common schools," and, more than .all, in advance of its submission to a 
vote, approA^ed by the President and Congress of the United States. 
On the same day members of the general assembly and State officers 
generally were elected. An active and arduous canvass had brought 
the people to a full knowledge of wliat was required of Virginia by the 
national authorities, and nobly did they meet the requirements. Their 
inclination, their reason, and their duty alike impelled them to elect to 
office only those men whom they thought would in honest faith com])ly 
literally and heartily with the requirements of the reconstruction laws. 



b TEST OATH IN VIRGINIA. 

The subseciuent action of the Virginia general assembly in ratifying- the 
fourteentli and lifteentli amendments to the Constitution of the United 
States, the solemn oaths they have taken to snp])ort and carry out in 
good faith their constitution which Congress had indicated was accept- 
able to the nation, the election by them of senators who were supposed 
to be acceptable, the character of representatives to the House elected 
by the people, are all solemn guarantees which have been given of the 
future conduct of the people of our State. Having com])lied, as we in- 
tended to do, and believe we have done, with every requirement of the 
law, and by our conduct in the immediate past given the highest and 
most solemn assurances of our future action, and because it would i)ro- 
mote every interest in the State, we respectfully ask "that her senators 
and representatives be promptly admitted to their seats, and that the 
State be fully restored to its place in the family of States.-' 

And the undersigned pledge themselves, and those whom they rei)re- 
sent, that the constitution of Virginia, voted for by the people on the 
Otli of July, 1809, shall be faitlifully carried out in letter and in spirit. 

ZEPPI. TUENEE, 
Sjyeal-ei' H. of />., Chairman Committee. 

EO. L. OWEN, Senator. 

J. B. cep:nshaw, R. of D. 

J. W. WALKEE, H. of J). 
E. W. MAHOOD, H. of D. 
E. C. BUEKHOLDEE, H. of D. 
W. N. wood, H. of ]). 
JOHN W. ASH BY, H. of I). 
Jno. a. McCaull, H. of JJ., 

Secretary. 



Statement of Governor G. C. Walker.i of Virginia, before the Reconstruc- 
tion Cominittee, December 9, 1S69. 

Governor Walker said : Gentlemen of the committee, I intended to be 
here at the opening of the session of the committee, when I supposed 
the members of the legislature who were appointed upon that committee 
were present, in order that I might hear the paper read. (The paper 
signed by Zeph. Turner and others.) I heard that paper read at the rooms 
of the committee, and I believe it expresses the views and intentions of 
a large majority of the people of the State of Virginia. We believe 
that we have comi)lied fully — at least we have tried to do so — with every 
provision of the reconstruction laws of Congress from beginning to end. 
We have adopted a constitution which was framed by a convention com- 
posed of delegates elected under the reconstruction laws. The constitu- 
tion, I believe, is republican in form in every i^articular, as adopted by 
the people. We have adopted that constitution by an almost unanimous 
vote of the State, and I believe it t^) be the firm intention of the people 
to accept that constitution entirely, fully, and in good faith. There are 
some i)rovisions of that constitution wliich 1 did not apjn^ove of and 
which I do not now, because I do not think they are adapted to our pecu- 
liar condition. Our territory is large; it is sparsely populated; and 
while the system of county organization would be well for New York, 
it would not be well for Virginia. But, from an inspection of the con- 
stitution, I an\ inclined to think that the evil would be in its mode of 
execution rather than in the article itself, and I think it can be applied 



TEST OATH IN VIRGINIA. 7 

to our state; and when the ])eoi)le come to understand it they will be 
satisfied with it. Every other provision of the constitution has been 
ratified by the people cheerfully, and, I believe, ^•oluntarily, in every 
resiiect; and I believe they will execute that constitution in the utmost 
good faith. 

You, I suppose, gentlemen of the committee, know that I spoke in 
various sections of the State during the canvass, and I stated to the 
people everywhere that these were the rules laid down for us to abide 
by, and that, when w^e conformed to them faithfully, I had no sort of 
doubt of our prompt admission to the Union. I believe we have com- 
plied in every respect — at least we have intended to — and we are here to 
ask for prompt admission. The necessity of prompt admission may not 
be so apparent to you as to us. The affairs of the State for the last 
eight or nine years have been in the utmost confusion, and for the 
greater x^art of the last four years the laws have been executed by the 
military commander ; and under the circumstances, as you will find by 
the reports of the various commanders, it has been next to an impossi- 
bility to find men who could take the iron-clad oath to fill the offices of the 
State. But even if there liad been plenty to fill every position in our 
State, still its government is unsettled; its financial condition today is 
that of dishonor, and it cannot be restored until we have a legislature 
and can support ourselves as a civil government. We need capital, we 
need emigration, and neither of those wiR come to our State until we 
have a settled civil government. I do not desire to detain you, but I 
wish to say that I agree with the language of that address, because it ex- 
presses my idea, and the ideas and intentions of our people. I desire it 
known not only here, but everywhere, to Congress and to our friends 
here of the committee, that the people of the State are in earnest about 
this matter ; that they are sincere, and have adopted this constitution, 
and approved the acts of the legislature under this constitution, hon- 
estly and sincerely, and that they will accept this constitution in entire 
good faith in every particular. 

By Mr. Butler. Will you allow me the single question ? Some of 
us have been told that there is an intention on the part of the legisla- 
ture, or some portion of the people of Virginia, as soon as the State is 
admitted into the Union, to have the legislature call a new convention, 
or that the people will call a new ccmvention, and alter the constitution, 
taking out the features of equality of rights, equality of education, and 
equality of taxes, which are in the present constitution, as soon as they 
can get the power under such circumstances that they cannot be con- 
trolled by Congress. Do you know or believe that any such intention 
exists; and if so, to what extent? 

Governor Walker. I have never heard of any such intention, and I 
do not believe there is such an intention. There are a great many rea- 
sons why there should not be any such serious design. In the first 
place, we are too anxious to be a settled State government without tur- 
moil and confusion. In the next place, Ave have no power to hold a 
convention. But we have been in a canvass, and it was said to the 
colored people that we would accej^t this constitution and abide by it, 
and stand by their rights, and show at all times that they should be de- 
fended in them. And when our people pledge themselves to do a thing 
they are very sure to do it. I have no sort of doubt about the result, as 
there are a great many reasons operating why they should not change 
this constitution. There are some questions of geograiihical positions 
which would control in that resjiect, if no other considerations did. 



8 TEST OATH IN VIRGINIA. 

There are here gentleiiieu from the north side of the James, and also 
from the south side of it; and I had just as lief state my views upon this 
question here as not. The colored vote of the State controls the south 
side of the river and tide-water, and the white vote controls tlie north 
side and western portion of the State, and they are determined to main- 
tain and retain that strength which they now hold. 

1 have heard this determination expressed by large numbers of gentle- 
men from those sections of the State, and if there are no other reasons 
this would be sufticient. But, gentlemen, the peoi)le of A^irginia have 
solemnly pledged themselves to maintain the civil and jiolitical rights 
of the colored men, and in my opinion there is not the slightest doubt 
but that they will faithfully fulfill their jiledges. They have said it, and 
they wdl abide by it. 

So far as the system of common schools is concerned, tnere is also no 
doubt in my mind of its faithful execution. The real objection to 
colored suflrage was the ignorance of the colored people. ]3ut now, 
having conceded the right of suffrage to the colored people, they feel 
that they should be educated in order that they may ])ro])erly appre- 
ciate the elective franchise. I advocated upon the stump the necessity 
of a thorough system of common schools open to all the children of the 
State, and solar as myintluence should extend such a system should be 
established. 

Mr. Charles II. Porter made a statement to the committee to the ef- 
fect that (Tfoveruor Walker had stated, in a speech made at Liberty, 
Bedford County, during the late canvass, that if he were elected the 
section of the constitution relating to county organizations never would 
be administeied. In rej)ly to this statement, Governor Walker was 
called upon, and spoke as follows : 

It is true that the reported speech was precisely as the gentleman 
states it. It is also true that those reports were taken down brielly, 
never revised by me, and I never saw them until I saw them in the 
newspapers. I was in another part of the State when this speech was 
published, and sent to me from Eichmond. I saitl to the people Avhat I 
have said here, that 1 did not approve of this county organization clause. 
It was expected that this clause would be submitted by the President, 
together with the test oath and disfranchising clauses, to a separate 
vote, and the people were greatly disappointed that it was not. In dis- 
cussing the subject, at first but little was said upon this question, not 
with a view to concealment or any thing of the kind ; l)ut subsequentlj' 
that clause was discussed. What I said was this, that it did not matter 
so much about the organization as it did the manner in which it was 
administered, and that if I were elected, and a legislature in accord 
with me, it never would be executed in a manner detrimental to the 
people. 

Mr. Porter. I would state that the chairman of the State central 
committee of the white man's or democratic party, after the deliAery of 
that Liberty speech, came out and issued an address to the people of 
Virginia, and therein stated that Governor AValker had made this 
speech, and called on the conservative voters to support him in conse- 
quence of this speech. 

Governor AValker. That committee which issued that address were 
not the people who nominated me, but subsequently came in and sup 
ported me. 



TEST OATH IN VIRGIiSriA. 9 

Ojmiiom of Attorneij General Hoar relative to the tal-inf) of the '■'■test oatW 
by persons elected to office in Virginia, and to the power of the legislature 
of Virginia elected^ under the act of Congress of April 10, 1800, to elect 
senators of the United States. 

Attor^s^ey Geneeal's Office, 

Angust 28, 18G9. 

Sir : I have tlie honor to acknowledge the receipt of yonr letter of 
July 27, 1809, in which you request my opinion "ui>ou so much of the 
questions submitted in the letter of the commanding general of the 
first military district, dated the 10th instant, and accoujpanying papers, 
copies of which are inclosed, as refers to the legal qualifications of 
ofiflcers to be elected under the proposed constitution of the State of 
Virginia, and especially upon the question whether persons elected to 
ofitice in such State, under said constitution, are required, by the supple- 
mental reconstruction act of Jidy 19, 1807, to take and subscribe to the 
oath prescribed or referred to in section 9 of said act, before entering 
ujion the duties of their respective offices." 

The latter question is the only oiie indicated with such distinctness as 
to enable me to be fully satisfied that its purport is apprehended, and I 
therefore confine my answer to that. 

By the statute of April 10, 1809, the registered voters of Virginia 
were authorized to vote on the question of the adoption of a constitu- 
tion for the State, and at the same time to elect officers under it, subject 
to the approval of Congress. The vote has been taken in pursuance of 
the provisions of the act, and the election held, and some parts of the con- 
stitution submitted have been adopted by the people, and others rejected. 
The parts of the proposed constitution thus adopted, if they shall be 
approved by Congress, will be the constitution of Virginia, under which 
all its officers will be required to act; and the qualifications, as well as 
the duties, of those officers will be determined by it. When Virginia is 
restored to its proper relations to the country as a State of the Union, 
its officers and legislature will be sucli as the constitution of the State 
provides, deriving their powers from that instrument, and it will clearly 
not be in the power of Congress to impose any requirement of additional 
qualifications upon them different from those which, under the Constitu- 
tion of the United States, may be required in all the States. If, there- 
fore, any tests were to be imposed upon members of the legislature not 
provided by the constitution of Virginia, or any restriction imi^osed 
upon the people of the State in their choice of officers not recognized 
by it, and not made applicable under the legitimate power of Congress 
to all the States, the legislature and officers would not, in my ox)inion, 
be the legislature and officers of Virginia under its constitution. I do 
not see that Congress can nndertake to furnish the State with a suitable 
legislature to start with, or to exercise any control over its composition 
which could not be exercised over subsequent legislatures. lam, there- 
fore, of oi)inion that the oath prescribed by the statute of 1802, and by 
the statute of July 19, 1807, chapter 30, section 9, required to be taken 
by all persons " elected or appointed to office in said military districts, 
under any so-called State or municipal authority," is not to be required 
of ihe officers of the State of Virginia, or members of the legislature 
elected under its new constitution. 

It does not seem to me that the provisions of this ninth section, which 

are applicable to the government of the State under military authority, 

were intended to apply to the legislature and officers under whom the 

State is to be restored to its proper relations to the Union, and by whom 

H. Mis. Doc. 8 2 



10 TEST OATH IX VIRGINIA. 

the g'ovornuiont of the State is to be administered after its restoration. 
This opinion is stron<;ly eontirmed by a reference to the second section 
of the same act, vrliich anthorizes the commander of any district named 
in the act " to snspend or remove from office, or the i)erformance of official 
(Uities, and the exercise of ofticial powers, any officer or person holding 
or exercising', or professing to hold or exercise, any civil or military 
office or dnty in said district, nnder any power, election, appointment, 
or anthority derived from, or granted by, or claimed nnder, any so called 
State or the go"\'ernment thereof," and to detail a competent officer or 
soldier of the army to perform such duties. 

It would be im})ossible to sui)pose that Congress could intend that a 
legislature, nnder the constitntion of a State, could have its members 
appointed by a detail from soldiers of the army. The only reasonable 
conclusion seems to me to be, that it was not intended that any such 
legislature should be allowed to exist and act until reconstruction was 
completed, excei)t for the limited and qualiiied purposes requisite to 
r(K'onstrnction. 

But, on the other hand, 1 fully concur with the view of the general 
commanding in Virginia, that, under the reconstruction acts of Congress, 
no officer or legislator is competent, or should be permitted, to exercise 
any of the functions or power of his office within that State, except so 
far as those acts themselves provide, without taking the oath which is 
referred to in the statute of 1867, above quoted. Tlie act of April 10, 
18G9, requires the legislature to meet at a time which it designates. 
That it is to meet implies that it is to come together for some purpose. 
It is required, under the previous law, to act upon the question of adopt- 
ing the fourteenth amenclment to the Constitution of the United States 
before the admission of the State to representation in Congress. I am 
of opinion, therefore, that it may come together, organize, and act upon 
that amendment ; but that, until Congress shall have approved the con- 
stitution and the action nnder it, and shall have restored the State to its 
])roper [)lace in t\m Union by recognizing its form of government as re- 
publican, and admitting it to representation, the legislature is not enti- 
tled, and could not, without violation of law, be allowed to transact any 
business, i)ass any act, or resolve, or undertake to assume any other 
function of a legislatuie, if the test oath has not been required of its 
members ; and that no officer elected under the new constitution can 
enter upon the duties of his office without taking the oath, while mili- 
tary government continues. 
Yerv respectfully, 

E. E. HOAE, 

Attorney General. 

Hon. John A. Eawlins, 

ISecretary of War. 



Attorney General's Office, 

September 25, 18G9. 
Sir : I have the honor to acknowledge the receipt of your letter ot 
this date, referring to me for my opinion a letter addressed to the Sec- 
retary of War by General Canby, dated September 24, 1860, which asks 
whether the legislature of the State of Virginia is authorized to elect 
senators of the United States at the session which commences on the 
tifth of next month, and desires that that question may be submitted to 
the Attorney General for his opinion. 



TEST OATH IN VIRGINIA. 11 

The n^eiieral views wliicli I entertain of the functions of the legishiture 
of Virginia, elected in pursuance of tlie provisions of the act of Congress 
of April 10, 1809, have already been fully indicated in an opinion trans- 
mitted to the Secretary of War, under date of August 28, 1869. I came 
to the conclusion that the members of the legislature were not required 
to take the oath referred to in section nine of the statute of July 19, 
1807, in order to qualify them to act as such members; that it was com- 
petent under the law for the legislature to meet, organize, and do what- 
ever was required or allowed by the acts of Congress as preliminary to 
the reconstruction of the State, but that it was not comijetent for them 
to undertake to enact laws, or otherwise to assume any of the functions 
of the government of the State, if organized without taking the oath 
above referred to, or if any of its members could not or did not take 
that oath. 

Upon a careful consideration, I am now of opinion that the election of 
senators, like voting upon the fourteenth and fifteenth amendments to 
the Constitution of the United States, is a part of the action contem- 
plated by Congress as preliminary to a restoration of the State to its 
full relation to the government of the United States as one of the States 
of the Union. The senators thus elected would have no poAver or 
authority until the Senate of the United States should have passed 
upon the validity of their election, and admitted them as members of 
that body. Under the act of April 10, 1809, the election of members of 
the House of Eepresentatives was permitted, and has taken place ; and 
when Congress comes to act upon the whole question of the recon- 
struction of the State, it would seem equally proper that members^ 
elected to both branches of the national legislature should present 
themselves, and be ready for admission to seats in the respective 
houses. The election of senators does not seem to me to trauvscend the 
action which comes within the limited and qualified purposes requisite 
to reconstruction, but rather to be essential to the completeness of that 
action, and I think that the military commander should not interefere 
with or prevent it. 

Very respectfully, 

E. E. HOAE, 

Attorney General, 

The President. 



War Department, 

Washington City, May 17, 1869. 
General : I have the honor to transmit herewith a certified copy of 
a proclamation of the President of the United States, issued in pursu- 
ance of the act of Congress approved April 10, 1809, designating the 
sixth day of Jul}', 1809, as the time for submitting the constitution 
passed by the convention which met in Eichmond, Virginia, on Tues- 
day, the third day of December, 1867, to the voters of said State regis- 
tered at the date of such submission — viz., July 6, 1809 — for ratification 
or rejection ; and submitting to a sex>arate vote the fourth clause of 
section 1 of article 3 and the seventh section of article 3 of said consti- 
tution, and directing the manner the vote is to be taken upon eac^h of 
said provisions and upon the other portions of the said constitution; 
which you will please cause to be transmitted to Brevet Major General 
E. E. S. Canby, commanding first military district, (district of Vir- 
ginia,) to carry into effect as provided b,\ said act and by the acts of 
Congress commonly called the reconstruction acts. At the same elec- 
H. Mis. Doc. 8 3 



12 TEST OATH IN VIRGINIA. 

tion the voters of said State may vote for and elect members of tlie 
general assembly of said State and all the ofiQcers of said State pro- 
^•ided for by the said constitution, and members of Congress. 
By order of the President. 

JNO. A. RAWLINS, 

Secretary of War. 
General W. T. SnEE:MAN, 

Commanding United States Army. 



Headquarters First Military District, 

State of Yirginiaj Richmond, Va., June 4, 18G9. 

Sir : 1 am instructed by the major general commanding to state, in 
reply to your letter of May liO, that the constitution to be submitted 
at tiie election of July does not become the organic law untd after 
it has been ratified by the people of the State, and approved by the 
Congress of the United States, and that the government of the State 
■continues to be i)rovisional until the conditions imposed by the fifth 
section of the law of March 2, 18(37, and the sixth section of the law 
•of April 10, 18G8, have been complied with. 

During this period of provisional government, all persons elected or 
appointed to ottice must take the oath of office prescribed by the law of 
.July 2, 18G2, or (in the case of persons whose political disabilities have 
been removed by Congress) the oath prescribed by the law of July 11, 
18GS, unless these oaths should have been previously dispensed with by 
Congress. It has been held heretofore that the approval of a constitu- 
tion that had been duly ratified by the people of a State dispenses with 
these oaths so far as State offices are aftected, and substitutes therefor 
the oath of office prescribed by the constitution itself. In the case pre- 
sented by you, the ratification of the constitution, with the " disfran- 
chising" and " test oath" struck out, a person who is unable to take the 
oath prescribed by the laws of the United States cannot enter upon 
the duties of the office to which he may be elected until the constitu- 
tion becomes the controlling law by reason of its approval by Congress. 

All elections held under the authority of the reconstruction laws 
must be conducted in conformity with the requirements of those laws. 
Verv respectfully, your obedient servant, 

LOUIS Y. CAZIAEC, 
A. D. a, A. A. A. G. 

Mr. W. C. EiCE, Burgess's Store, Virginia. 

Official copy : 

Louis Y. Caziarc, A. D. C, A. A. A. G. 



Headquarters First Military District, 

State of Virginia, Bichmond, Va., July 22, 1869. 
Sir : I have the honor to report, for the information of the General of 
the Army, the results of the election in this State, so far as they have 
been verified by the examination of the returns in this office : 

First. For constitution 210, 577 

Against constitution 9, 136 

219, 713 
Majority for 201, 411 



TEST OATH IN VIRGINIA. 13 

Second. For clause 4, section 1, article 3 84, 410 

Agaiust clause 4, section 1, article 3 124, 300 

208, 770 
Majority against 39, 950 

Third. For section 7, article 3 83, 458 

Against section 7, article 3 124, 715 

208, 173 
Majority against , : 41, 257 

Fourth. For governor: 

G. C. Walker 119, 535 

H. H. Wells 101, 204 

220, 739 

Majority for Walker 18, 331 

Scattering 14 

Fifth, For lieutenant governor : 

Jobn F. Le^\ is 120, 0G8 

J. I). Harris 99, 400 

219, GGS 

Majority for Lewis 20, 408 

Scattering 25 

Sixth. For attorney general: 

James C. Taylor 119^ 44G 

Thomas E. Bowden 101, 029 

220, 475 

Majority for Taylor 18, 417 

Scattering 35 



The registered vote of the State (except five precincts not yet re- 
ceived) was 2G9, 518. The number not voting upon the constitution was 
49,722; upon clause 4, section 1, article 3, was 00,788; and upon section 
7, article 3, 01,345. 

This includes the rejected ballots, which were respectively 308, 425, 
and 427. 

Tlie result with regard to members of the House of Representatives 
of the Congress of the United States and members of the general as- 
sembly of the State has not yet been reached. 

The above results are given from the registration and canvass returns, 
and a comparison of these indicates that the numbers not voting were 
very evenly in the ratio of white and colored voters, but the exact pro- 
portion can only be determined by a close examination of the poll lists, 
and will be given hereafter. In some of the counties, where the regis- 
tration was nearly equal, the falling off in the vote is comparatively small, 
and not greater than is usual iu other States. The converse'^of this 
appears to be true with regard to a number of counties where the pre- 
ponderance of one or the other class of voters was so large as to leave 
no doubt of the result, and thus divest the election of the interest that 
usually attaches to a close contest. The gTeatest falling off was in 



14 TEST OATH IN VIRGINIA. 

counties where the majority of white registered voters was greatest, but 
iu these (mountain) counties the unfinished harvest Avork no doubt had 
its intiuence in reducing the vote. In some of the counties the vote 
appears to have been greatly influenced, both as to numbers and direc- 
tion, by the personal influence and exertions of the local candidates. 
In two counties, where considerable majorities were given for Governor 
Wells, but two votes iu each were cast in favor of the test-oath and dis- 
franchising clauses. 

There are a number of complaints of fraudulent voting, but the regis- 
tration and election records furnish the means of determining, within 
very narrow limits, the extent of such frauds, and are now being exam- 
ined for that purjiose. The military commissioners or suijerintendents 
of election for eighty-six counties report that the election was impar- 
tially and fairly conducted in the counties under their sujiervisiou. In 
five counties they report that the vote was influenced by intimidation 
and fraud, and are now engaged in the investigation of the subject, and 
eleven have not yet reported. The most numerous complaints and most 
diflicult of investigation are those Avhich relate to intimidation and 
fraud in keeping voters away from the ])olls, or in constraining them to 
vote otherwise than as they wished. These complaints come from both 
parties, and in many instances are no doubt well-founded, but the evi- 
dence is not such as to induce the belief that they have influenced the 
result, except possibly iu a few cases where the local vote was verj- 
close. 

The charges of misconduct against the election officers are very few; 
remarkably so, when it is considered that the ballot is a novelty in this 
State, and that the great majority of the election officers were entirely 
without exiierience. The number of infornuil or rejected ballots, when 
considered in the same light, is also ver;^' small. 

Many votes were no doubt lost by the failure of voters to establish 
their oiiginal registration ; by appearing at precincts where they were 
not entitled to vote ; or by errors or omissions in copying the registra- 
tion lists. In a few instances it is charged that these omissions were 
intentional and for the purpose of fraud ; but in the great majority of 
cases the failure ai)pears to be due to the inexijerience of the voters, 
both white and black, themselves. 

There are also charges that many persons were admitted to register 
who were not entitled to, and that others who were entitled were denied. 
An examination of the reports required by paragraphs 28 and 29 of 
General Orders No. 01 will determine how far these complaints are well 
founded. 

Very respectfullv, vour obedient servant, 

E. E. S. CAXBY, 
Brevet Major General United States Army, Commanding. 

Adjutant General U. S. Akmy, Washington, B. C. 



nrroRTANT letter from general canby in reference to the 

TEST oath — legislators AND STATE OFFICERS REQUIRED TO 
SUBSCRIBE TO IT. 

Richmond, Virginia, June 23, 1869. 
General : It is credibly stated that you have, when addressed by 
other persons on the subject, given an interpretation of the act of July 



TEST OATH IN VIRGINIA. 15 

19, 18G7, as to the test oath, which is of material importance in the 
election abont to be held in this State. It is represented that yon liold 
that members abont to be elected to the legislature will not be entitled 
to take their seats nnless they take the oath known as the iron-clad test 
oath. 

Will yon allow me to ask whether this statement be true, and, if con- 
sistent with your sense of propriety, to ask also an explanation of the 
reasons on which you base the interpretation ascribed to you. 
I am, very respectfully, your obedient servant, 

B. W. GILLIS. 
Brevet Major General E. E. S. Canby, 

Commanding First Military Bistrict. 



Headquakters First Military District, 

(State of Virginia,) 
Eichmond, Virginia, June 26, 1809. 

Sir : I have received your note of the 2.3d instant, and wiU state in 
reply to the inquiries therein made — 

First. That I have nniformly held that members of the general 
assembly and State officers, to be elected on the Oth proximo, would be 
required to take, before entering ujion the dnties of their offices, the 
oath prescribed by the law of July 2, 18G2, unless the constitution should 
first be approved by Congress, or the oath be otherwise dispensed with 
by law. 

Second. That this decision is in conformity with the action heretofore 
taken upon the same subject in another district, and was based npon a 
careful consideration of all the laws bearing upon the question now pre- 
sented. 

The sixth section of the law of March 2, 1867, provides " That until the 
people of the said rebel States shall be by law admitted to representa- 
tion in the Congress of the United States, any government which may 
exist therein shall be deemed provisional only, and in all respects sub- 
ject to the paramount authority of the United States to abolish, modify, 
control, or supersede the same." The conditions that must precede this 
admission to representation are prescribed by the fifth section of the 
same law, the fifth section of the law of March 23, 1867, and the sixth sec- 
tion of the law of Ai)ril 10, 1869. The same section prescribes the 
qualifications of voters in all elections to office, and the qualifications 
(eligibility) of officers under such i^rovisional governments. The sup- 
plementary law of March 23, 1867, modified the qualifications of voters 
by prescribing registration, and determiuing the conditions essential to 
registration, and the amendatory law of March 13, 1868, section 2, applied 
the same qualifications (registered voters) to the voters for members of 
the House of Representatives of the United States, and all elective 
offices provided for by those constitutions, at the elections to be held 
upon the questions of ratifying or rejecting the proposed constitutions; 
and the ninth section of the law of July 19, 1867, imposes an additional 
qualification upon the officers, by requiring that they shall take the oath 
of office prescribed by the law of July 2, 1862. 

Under the original law of March 2, 1867, (section 5,) it was in the 
power of the district commander to prescribe an oath of office, conform- 
ing to the conditions of eligibility i^rescribed by that section, and this 
in fact was done by several of the district commanders — in this district 
by General Orders No. 9, of April 5, 1867 — and these oaths continued in 



16 TEST OATH IN VIRGINIA. 

force until they were superseded by the oath recjiiired by the la\r of July 
19, 1807. That hiw phiced the subject l)eyoiid the discretion and control 
of the district commander, and he cannot now jirescribe or adopt any 
difterent oath without disregarding or annulling a positive and control- 
ling law. I have heretofore held and do now hold that the api)roval by 
Congress of any proposed constitution makes it a part of the reconstruc- 
tion laws, and, to the extent that Congress directs or authorizes any 
action under it in advance of the admission of the State, dispenses with 
the provisions of any previous laws that conflict with it. In all other 
respects the constitutions and the governments organized under them 
remained inoperative until all the conditions of restoration were satisfied. 
It has been suggested recently that this decision is in conflict with a 
decision made by the General of the Army in relation to the State of 
Georgia, on the 2d of ]\f arch, 1SG8. The only decision of that date which 
I have been able to find relates to the State of Florida, and is in reply to 
a specific inquiry as to the qualifications of voters for offices under the 
constitution, "and to take office on the adoption of the constitution," 
and the answer is to be interpreted by the decision of January 13, 1808, 
that " the g^overnments elected cannot assume authority except under 
the orders of the district commander, or after action of Congress on their 
constitutions." The decision in relation to Georgia is dated on the 29tli 
of Apvil, 1808. It is similar in import, and refers to the dispatch of 
March 2, and this has probably led to the confusion of dates. It is in 
answer to a communication from the commander of the third military 
district, and applies directly and ai)parently exclusively to the second 
liaragraph of General Orders No. 01, third military district, of May 15, 
1808, which provides that '■' inasmuch as said general assembly, should 
the constitution now submitted to the people of the State be ratified by 
them and be approved by Congress, is required to convene and adopt 
the proposed amendment to the Constitution designated as Article XIV 
before the State can be admitted to representation in Congress, it may 
be decided that the members of the said general assembly are, while 
taking this preliminary action, officers of a i)rovisional government, and 
as such required under the ninth section of the act of Congress of July 19, 
1807, to take the test oath. 

This decision must also be interpreted by the decision of January 13, 
and this I apprehend to be the proper rule of interpretation of all the 
correspondence upon this subject, as I have been nnable to find any case 
in which the inquiry and answer did not relate to the status of these 
officers after the approval by Congress of the constitution under which 
they were elected. The law of June 25, 1808, approving the constitu- 
tions of several States, and authorizing specific action under them, was 
regarded by me as dispensing- with the oath of office prescribed by the 
law of July 2, 1802, first as to the members of the general assembly, and, 
after the ratification of the constitutional amendment, to the other 
State officers duly elected and qualified under those constitutions. This 
construction, in its first application, did not include the governor and 
lieutenant governor, but as the organization of the legislature would 
have been incomplete without the lieutenant governor, and as the legis- 
lative action required by the law might have been embarrassed by the 
action of the old incumbents, the General of the Army directed that they 
should be removed and the governor and lieutenant governor elect should 
be appointed in their places. They were so appointed in North and 
South Carolina, qualified under their military appointment, and, after the 
ratification of the constitutional amendment, again qualified under the 
constitutions of their States. 



TEST OATH IN VIRGINIA. 17 

The action taton in tlie first case was approved, and in the second 
directed by the General of the Army. It has also been suggested that 
the reconstruction laAvs are silent as to the qualification of officers to be 
elected under the proposed constitutions and of voters at such elections, 
and that the laws under which the decision has been made are in conflict 
with the recent legislation of Congress (act of April 10, 18G0) and with 
the fourteenth article of the amendments to the Constitution of the 
United States. The question with regard to the qualification of voters 
was raised iu the case of the (then) proposed constitution of the State 
of Florida, aud was settled by the second vsection of the law of March 
13, 1868, which provides " That the constitutional conventions of any of 
the States named iu the acts to which this is amendatory, may provide 
that, at the time of voting upon the ratification of the constitution, the 
registered voters may vote also for members of the House of liepresenta- 
tives of the United States, and for all elective oflBcers provided by said 
constitution." The " voters" at the election to be held in this State for 
" members of the general assembly," '^ State officers," and " members of 
Congress," under the authority of the second section of the law of April 
10, 18G9, are determined by the first section of that law to be the " voters 
of said State registered at the date of said submission (of the constitu- 
tion) for ratification or rejection." The qualification of the officers rests 
upon the same basis, and must be governed by the reconstruction laws 
until the constitution becomes the controlling law, aud this does not ob- 
tain until it has been approved by Congress. Over the remaining sug- 
gestions the district commander has no control, and the question, whether 
the laws are or are not in conflict with the constitution, must be deter- 
mined by the Supreme Court of the United States. 
Very respectfully, your obedient servant, 

ED. E. S. CANBY, 
Brevet Major General Commanding. 

Mr. B. W. GiLLis, Richmond, Virginia. 

Headquarters First Military District, 

Juhj 3, 1869. 
No. 1378— official copy: 

LOUIS Y. CAZIAEC, 

Aide-de- Camp and Acting Assistant Adjutant General. 



[General Orders No. 104.] 

Headquarters First Military District, 

(State of Virginia,) 
Richmond, Yirginia, September 8, 1869. 
At the election held in the State of Yirginia on the 6th day of July, 
]869, pursuant to General Orders Ko. 61, headquarters first military 
district, dated May 21, 1869, and under the authority of the law of the 
United States of March 2, 1867, and the laws supplementary thereto 
and amendatory thereof, and of the proclamation issued by the Presi- 
dent of the United States on the 11th day of May, 1869, the question 
of ratifying or rejecting the constitution framed by the convention 
elected for that purpose, under the authority of tlie above-cited laws, 
was submitted to the qualified electors of said State registered at the 
date of said submission ; and at which election, under the authority of 



18 TEST OATH IN VIRGINIA. 

the second section of the law of the United States, of April 10, 1869, 
(Public No. 13,) the election of " members of the general assembly of 
said State, and all the officers of said State provided for by said con- 
stitution, and members of Congress," was also snbmitted to the quali- 
fied electors of said State : And the election officers having made the 
returns required by law, it is hereby declared : 

1. That the constitution framed by the convention which assembled 
in the City of Kichmond, Virginia, on Tuesday, the 3d day of Decem- 
ber, 1807, and adjourned' on Friday, the 17th day of April, 1808, save 
tbe parts submitted to a separate vote under the authority of the law 
and proclamation above cited, has received a majority of the votes cast 
by the qualified electors of said State, and has been duly ratified. 

2. That the fourth clause of Section 1, Article III, of said constitu- 
tion, which was submitted to a separate vote under the authority of the 
law and proclamation above cited, has received a minority of the votes 
cast by the qualified electors of said State upon the question of ratifi- 
cation or rejection, and has been duly rejectee!. 

3. Tlmt Section 7, Article III, of the said constitution which was also 
submitted to a separate vote under the authority of the law and procla- 
mation above cited, has received a minority of the votes cast by the 
qualified electors of said State upon the question of ratification or re- 
jection, and has been duly rejected. 

4. That the following named persons have received a majority of the 
votes cast by the qualified electors of the State for the executive offices 
hereinafter specified : 

Governor — Gilbert C. Walker. 
Lieutenant governor — John F. Lewis. 
Attorney general — James C. Taylor. 

5. That the following-named persons have received a majority (or 
plurality) of the votes cast by the qualified electors of of their respect- 
ive senatorial and representative districts for members of the general 
assembly of the State of Virginia, as hereinafter specified : 

SENATE. 

First senatorial district — Counties of Alexandria, Fairfax, and Lou- 
doun ; Edgar Snowden, jr., and Thomas E. Taylor. 

Second senatorial district — Counties of Fauquier, Prince William, 
and Eappahannock ; T. N. Latham. 

Third senatorial district — Counties of Culpeper, Madison, and Orange; 
D. A. Grimsley. 

Fourth senatorial district — Counties of Louisa, Spottsylvania, and 
Stafford ; Charles Herudou. 

Fifth senatorial district — Counties of Fluvanna, Goochland, and Pow- 
hatan ; William P. INIoseley. 

Sixth senatorial district — Counties of Albemarle and Greene ; E. S. 
Beazley. 

Seventh senatorial district — Counties of Appomattox and Bucking- 
ham ; Frank Moss. 

Eighth senatorial district — Counties ef Amherst and Nelson ; Thomas 
P. Fitzpatrick. 

Ninth senatorial district — Counties of Franldin and Henry ; James 
Patterson. 

Tenth senatorial district— County of Pittsylvania ; Abner Anderson. 

Eleventh senatorial district — County of Campbell ; Kobert L. Owen. 

Twelfth senatorial district— County of Bedford ; William 11. Terry. 

Thirteenth senatorial district — County of Halifax 5 Marcus A. Harris. 



TEST OATH IN VIRGINIA. 19 

Fourteentli senatorial district — Coimties of Charlotte and Prince Ed- 
ward ; J. W. D. Bland. 

Fifteentk senatorial district — County of Mecklenburg: F. W. Has- 
kell. 

Sixteeutk senatorial district — Counties of King George, Lancaster, 
Northumberland, Ilichiuond, and Westmoreland ; Meriwether Lewis. 

Seventeenth senatorial district — Counties of Caroline, Essex, and 
King William ; E. W. Massie. 

Eighteenth senatorial district — Gloucester, King and Queen, Matthews 
and Middlesex ; W. K. Perrin. 

Nineteenth senatorial district — County of Henrico and City of E.ich- 
mond ; Normand Smith, A. E. Courtney, and Charles Campbell. 

Twentieth senatorial district — City of Norfolk and County of Princess 
Anne ; W. H. Taylor. 

Twenty-first senatorial district — County of Norfolk ; George Teamoh. 

Twenty-second senatorial district — Counties of Isle of Wight, Nanse- 
mond, and Southampton ; Washington L. Eiddick. 

Twenty-third senatorial district — Counties of Dinwiddle, Greenesville 
and Sussex ; David G. Carr. 

Twenty-fourth senatorial district — Counties of Elizabeth City, Surry, 
Warwick, and York ; Isaiah L. Lyons. 

Twenty-fifth senatorial district — Counties of Brunswick and Lunen- 
burg ; William P. Austin. 

Twenty- sixth senatorial district — Counties of Chesterfield and Prince 
George ; William T. Martin. 

Twenty-seventh senatorial district — City of Petersburg: Franklin 
Wood. 

Twenty-eighth senatorial district — Counties of Accomack and North- 
ampton ; Abel T. Johnson. 

Twenty-ninth senatorial district — Counties of Charles City, Hanover, 
James City, and New Kent ; J. Ambler Smith. 

Thirtieth senatorial district — Counties of Amelia, Cumberland, and 
Nottoway ; John Eobiuson. 

Thirty-first senatorial district — Counties of Clarke, Frederick, and 
Shenandoah ; William D. Smith. 

Thirty-second senatorial district — Counties of Page, Eockingham, and 
Warren ; John E. Eoller. 

Thirty-third senatorial district — Counties of Augusta and Highland ; 
Joseph Waddell. 

Thirty-fourth senatorial district — Counties of Alleghany, Bath, and 
Eockbridge ; William A. Anderson. 

Thirty-fifth senatorial district — Counties of Botetourt, Craig, Giles, and 
Eoanoke ; Edmund Pendleton. 

Thirty-sixth senatorial district — Counties of Floyd, Montgomery, and 
Patrick ; John E. Penn. 

Thirty-seventh senatorial district — Counties of Carroll, Grayson, and 
Wythe ; A. M. Davis. 

Thirty-eighth senatorial district — Counties of Bland, Pulaski, Eussell, 
and Tazewell ; James Milton French. 

Thirty-ninth senatorial district — Counties of Buchanan, Lee, Scott, and 
Wise ; George H. Kindrick. 

Fortieth senatorial district — Counties of Smyth and Washington ; 
James S. Greever. 

HOUSE OF DELEGATES. 

County of Accomack — Edmund E. Bagwell and Thomas C. Parramore. 
County of Albemarle— S. Y. Southall, J. C. HiU and James D. Jones. 



20 TEST OATH IN VIRGINIA. 

County of Alexandria — George L. Seaton, * . 

County of Amelia — John E. Moss. 

County of Amherst — J. E. Adams and Joseph H. Massie. 

County of Appomattox — Robert B. Poore. 

Counties of Alleghany and Craig — B. L. Woodson, 

County of Augusta^ — H. M. Bell, A. B. Cochrane, and Marshall 
Hanger. 

Counties of Bath and Highland — John E. Popham. 

County of Bedford — Benjamin H. Moulton, John E. Thurman, and 
James O. Hensley. 

County of Bland — Addison Davis. 

County of Botetourt — Cary Breckinridge. 

County of Brunswick — John Dugger. 

County of Buckingham — J. H. Noble and C?esar Perkins. 

Counties of Buchanan and Wise — J. T. Chase. 

County of Campbell — Eufus A. Murrell, John W. Daniel, and Eobert 
C. Burkholder. 

County of Caroline — Eobert O. Peatross and John M. Hudgin. 

County of Carroll — Frank W. Lindsey. 

County of Charles City — R. G. W. Jones. 

County of Charlotte — George W. Graham and William H. Eagsdale. 

Counties of Chesterfield and Powhatan — Samuel F. Maddox, B. T. 
Edwards, and Henry Cox. 

County of Cumberland — James Lipscomb. 

County of Cnlpeper — John E. vStrother. 

County of Clarke— W. W. Arnett. 

County of Dinwiddle — Ellis Wilson. 

Counties of Elizabeth City and Warwick — William Bartlett and D. 
B. White. 

County of Essex — Watson E. Wentworth. 

County of Fauquier — James Keith and F. L. Marshall. 

County of Fairfax — Job Hawxhurst. 

County of Floyd — George Young. 

County of Franklin — Benjamin X. Hatcher and George H. T. Greer. 

County of Fluvanna — John Henson. 

County of Frederick — David J. Miller. 

County of Giles— F. W. Mahood. 

County of Goochland — J. B. Miller, jr. 

County of Greenesville — Peter K. Jones. 

County of Greene — Thomas M. Shearman. 

County of Gloucester — James K. Stubbs. 

County of Grayson — Lewis H. Bryant. 

County of Halifax — Alexander Owen, Isaac Edmundson, and W. W. 
Wood. 

County of Hanover — W. E. Winn and C. E. Thompson. 

County of Henrico and city of Eichmond — Augustus Bodeker, A. M. 
Keiley, L. H. Frayser, Jacob S. Atlee, John B. Crenshaw, William 
Lovenstein, George K. Gilmer, and Stephen Mason. 

County of Henry — C. Y. Thomas. 

County of Isle of Wight — George E. Atkinson. 

County of James City — F. S. IS^orton. 

County of King and Queen — John W. Bulman. 

County of King William — B. F. Jones. 

County of King George — W. A. J. Potts. 

* Hon. James T. Close, elected as a delegate to tlio liouse of delegates for the county 
of Alexandria, died ou the 1st day of Seiitember, 1869. A new election has been called 
to fill the vacancy. 



TEST OATH IN VIRGINIA. 21 

County of Lancaster — Josiah Tatiun. 

C'Ounty of Lee— William McDonald. 

County of Louisa — Bernard McCracken and F. M. Perkins. 

County qf Lunenburg — Stitli Boiling. 

County of Loudoun — Isaac D. Budd and William Matliew. 

County of ]^Iattlle^YS — Henry Bell. 

County of INIadison — James W. Walker, jr. 

County of Mecklenburg — S. M. Dodge and John Watson. 

County of IVIiddlesex — L. C. Bristow. 

County of Montgomery — Robert A. Miller. 

County of jSTansemond — David Thayer. 

County of New Kent — William H. Brisby. 

City of Norfolk — Henry M. Bowden and Arthur S. Segar. 

County of Norfolk — Luther Lee, jr., A. L. Woodworth, and Charles E. 
Hodges. 

County of Nelson — William L. Williams. 

County of Nottoway — George H. Southall. 

County of Northampton — James C. Toy. 

County of Northumberland — B. G. Haynie. 

County of Orange — Da\id Pannill. 

County of Patrick— William F. B. Taylor. 

County of Page — John W. Asliby. 

County of Pittsylyania— M. H. Clark, W. J. Fulton, Walter Coles, 
and T. H. Gosney. 

City of Petersburg — Peter G. Morgan and George Fayerman. 

County of Prince Edward — Thomas P. Jackson. 

County of Prince George — A. N. Fretz. 

County of Prince William — William A. Bryant. 

County of Pulaski— William J. Wall. 

County of Princess Anne — John Q. Hodges. 

County of Rappahannock — Zepli Turner. 

County of Richmond — L. R. Stewart. 

County of Rockingham — Philo Bradley and Henry B. Harnsberger. 

County of Rockbridge — William McLaughlin and Samuel B. JVIor- 
rison. 

County of Roanoke — J. A. McCauU. 

County of Russell — John H. A. Smith. 

County of Shenandoah — Josiah L. Campbell. 

County of Smyth — John A. Kelly. 

County of Southampton — Richard U. Burgess. 

County of Scott— E. F. Tiller. 

County of Surry — William H. Andrews. 

County of Staftbrd— J. C. Shelton. 

County of Sussex — William N. Stephens. 

County of Spottsylvania — J. H. Kelly. 

County of Tazewell — Henry Bowen. 

Count}" of Washington — George Graham and John F. Teriy. 

County of Warren — Smith S. Turner. 

County of Westmoreland — George Walker. 

County of Wythe— John H. Fulton. 

County of York — Robert Norton. 

6. No persons ineligible to office under the provisions of the third sec- 
tion of Article XIV of the Amendments to the Constitution of the 
United States, hereinafter published for the information and govern- 
ment of those whom it may concern, will be allowed to enter upon the 



22 TEST OATH IN VIRGINIA. 

duties of the offices to which they may have been chosen unless their 
disabilities have been removed by Congress : 

"Article XIV. 

" Section 3. No person shall be a senator or representative in Con- 
gress, or elector of President and Vice-President, or hold any office, 
civil or military, under the United States, or under any State, who, 
having previously taken an oath as a member of Congress, or as an offi- 
cer of the United States, or as a member of any State legislature, or as 
an executive or judicial officer of any State, to support the Constitution 
of the United States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the enemies thereof. But 
Congress may, by a vote of two-thirds of each house, remove such dis- 
ability." 

7. That the folloT\ing named persons have received a; majority (or plu- 
rality) of the votes cast by the qualified electors of their respective con- 
gressional districts, as established by an ordinance of the convention 
adopted April 14, 18G8, and are entitled to certificates of election as 
members of the House of Eepresentatives of the Congress of the United 
States for the said districts, as hereinafter specified: 

First congressional district — Richard S. Ayer. 
Second cougressional district — James H. Piatt, jr. 
Third congressional district — Charles H. Porter. 
Fourth congressional district — George W. Booker. 
Fifth congressional district — Robert Ridgway. 
Sixtli congressional district — William Milnes, jr. 
Seventh congressional district — Lewis McKenzie. 
Eighth congressional district — James K. Gibson. 

8. Tlie following named person has received a majority of the votes cast 
by the qualified electors of the State vesting at large throughout the State 
for member of Congress at large, as prescribed by the ordinance of the 
convention, April 14, 18G8, and is entitled to certificate of election: 

State at large — Joseph Segar. 

9. An abstract of the election returns will be prepared and deposited 
in the office of the secretary of the Comnuinwealth. 

10. The certificates of election of the executive officers of the State, 
and of the representatives in the Congress of the United States, will be 
sent direct to their post office address. Those for the members of the 
general assembly will be deposited in the office of the secretary of the 
Commonwealth for delivery, upon application, to the persons entitled to 
receive them, and a copy of this order will be sent to the post office ad- 
dress of each. 

11. The 5th section of the act of Congress approved April 10, 1869, 
(Public No. 13,) provides that the legislature elected, as provided for in 
said act, shall assemble at the capital of the State on the fourth Tues- 
day after the official promulgation of the ratification of the constitution ; 
and to prepare for and facilitate the organization of the legislature under 
the aforecited law, the following appointments are hereby made : 

1. Gilbert C. Walker, to be governor of Virginia, vice H. H. Wells, 
resigned, to take effect Tuesday, September 21, 1809. 

2. John F. Lewis, to be lieutenant governor of Virginia, to fill a va- 
cancy, to take effect on the assembling of the legislature, Tuesday, Oc- 
tober 5, 18()9. 

By command of Brevet Major General Canby: 

LOUIS V. CAZIARC, 
Aide-de-Cann), Acting Assistant Adjutant General. 



TEST OATH IN VIEGINIA. 



23 



Summary of the mtmher of rajhtcrcd roler.s, the uiimher of votes polled, and the result of the 
election on the question of the acceptance or rejection of a proposed constitution for the State 
of Virginia, held on the sixth {6th) day of July, 1869. 



County or city. 



Accomac 

Albemarle ...... 

Alexandria 

Alleghany 

Amelia 

Amherst 

Appomattox 

Anjjusta 

Bath 

Bedford 

Bland 

Botetourt 

Brunswick 

Buchanan 

Buckingham ... 

Campbell 

Caroline 

Carroll 

Charles City 

Charlotte . .' 

Chesterfield . . . . 

Clarke 

Craig 

Culpeper 

Cumberland 

Dinwiddle 

Elizabeth City.. 

Essex 

Fairfax 

Fauquier 

Floyd 

Fluvanna 

Franklin 

Frederick 

Giles 

Gloucp.ster 

Goochland 

Grayson 

Greene 

Greonosville 

Halifax 

Hanover 

Henrico 

Henry 

Highland 

Isle of Wight . . . 

James City 

King and Queen 
King (icorge . . . . 
King William... 

Lancaster 

Lee 

Loudoun 

Louisa 

Lunenberg 

Madison 

Mai hews 

Mecklenburg ... 

Middlesex 

iI(iiitgo)iiery 

Nanscmond 

Nelson 

New Kent 

Norfolk 

Northampton . . . 
North nm berland 

Nottoway 

Orange .' 

Piise 

Batrick 

Pittsylvania 



Number of 
registered 
votes. 



White. Col'd. 



1,715 

3,107 

2,240 

117 

1, G95 

1,603 

988 

1, 582 

139 

2,351 

CO 

721 

1,926 

5 

1,890 

3, 523 

1,645 

72 

841 

2,26' 

2,289 

488 

47 

1,086 

1,503 

1,766 

1,754 

1, 256 

1,100 

1,550 

188 

1, 023 

1,158 

746 

146 

1,060 

1,641 

131 

273 

853 

3,686 

1,711 

2,133 

1,062 

75 

743 

605 

948 

600 

803 

572 

128 

1,209 

1,910 

1,439 

658 

387 

3,181 

507 

654 

1, 325 

1,466 

592 

3,767 

1,216 

538 

1,566 

1,177 

199 

378 

3,971 



Number of 
votes cast. 



White. Col'd 



2,349 

2,839 

1,821 

505 

612 

1,673 

868 

3, 982 

456 

2,858 

562 

1,219 

894 

204 

1,083 

2,987 

1,509 

1,036 

388 

986 

2,218 

745 

336 

1,195 

594 

832 

405 

741 

1,440 

2,182 

1,059 

989 

1,765 

1,956 

682 

977 

82; 

924 

544 

381 

2, 190 

1,794 

1, 712 

842 

581 

1,008 

269 

804 

543 

608 

415 

1,324 

2,746 

1, 283 
928 
924 
671 

1,432 

478 

1,435 

1, 139 

1,541 

495 

2,493 

589 

732 

537 

1,068 

965 

834 

2, 771 ! 



1,433 
2,303 
1,69 

68 

1,435 

1,327 

805 

1, 0:<4 

70 
1,883 

24 

530 

1,704 



1, 527 

2, 721 
1,35 

47 

627 

1,808 

2,107 

413 

22 

912 

1, 177 

1,549 

1, 463 

1, 059 

833 

1 228 

'l03 

771 

796 

523 

54 

924 

1,411 

99 

169 

750 

2,760 

1,381 

1, 54 

86; 

44 

614 

528 

864 

519 

685 

511 

40 

987 

1, 549 
987 
434 
316 

2, 786 
453 
510 

1,148 

1, 172 

540 

3, 236 
1,054 

495 
1, 335 
929 
136 
260 
2,974 



^ 



2, 825: 
5, 0991 
3,510 

475 
2,033 
2,869 
1,614 
4,715 

469 
4, 432 

562 
1,386 
2,488 

192 
2,592 
5,5' 
2, 825 
1,076 
1,004 
2,767 
4,259 

907 

249 
1,743 
1,748 
1,936 
1,821 
1,793 
2, 223 
3,382 
1,053 

1, 725 

2, 256 
2, 264 

71 
1, 854 
1, 980 

1, 020 
624 
840 

4,894 
3, 125 
3,243 
1,678 

470 
1,460 

707 
1,607 
1,006 
1,287 

785 
1,346 
3,408 

2, 805 
l,83i 

1, 264 
936 

4, 151 

909 

1,845 

2,211 

2, 650 
1, 023 
5,547 
1,583 

988 
1,813 
1,969 
1,086 
1,007 
5,717 



910 
25 
7 
85 
14 

131 
59 

175 
53 

309 
24 

353 

110 

4 

14 

98 

34 

7 

4 

19 

12 

200 

102 
55 
13 

364 

46 

7 

13 

n 

88 
22 
303 
135 
19 
47 



72 

265 
34 
50 
13 
32 
96 

159 

6 

1 

53 

2 

117 
18 

106 
12 
71 
64 
51 
67 
22 
49 
61 
41 
11 

182 
54 

234 
53 
21 
8 
70 
28 



438 

2,187 

1,674 

15 

610 
1,284 

693 

314 



1,885 

82 

548 

1, 623 

30 

1, 342 

2,536 

1,337 

385 

613 

1,499 

1,779 

431 

63 

882 

1,112 

1,471 

1,504 

1, 05 

983 

1,1 

389 

28 

812 

861 

93 

867 

1,379 

184 

13 

735 

1,489 

1,256 

1,534 

95 

90 

539 

409 

833 

508 

522 

496 

136 

1,303 

1,445 

814 

360 

361 

2,668 

442 

613 

1,160 

1,066 

500 

3,447 

2 

487 

1,146 

211 

99 

240 

1,412 



^ 



2, 324 

2,954 

1,729 

547 

970 

1,716 

980 

4,071 

523 

2,83 

490 

1,169 

948 

171 

1,149 

3, 12S 

1, 525 

703 

398 

1,144 

2,217 

682 

293 

1,187 

631 

836 

356 

726 

1,247 

2,221 

729 

1, 102 

1,73. 

1,578 

612 

987 

838 

815 

571 

354 

2,809 

1, 

1,718 

1,000 

511 

1, 080 

275 

829 

5,54 

613 

424 

1, 228 

2, 055 
1, 344 
1,063 

998 
616 

1, 526 
485 

1,306 

1,118 

1, 569 
532 

2,097 
570 
714 
568 

1, 023 
941 
826 

3,219 



31 






438 

2,19' 

1,663 

17 

610 
1,284 

689 

253 



1,785 

82 

552 

1, 623 

30 

1,337 

2,536 

1, 337 

383 

609 

1,500 

1,76 

432 

65 

880 

1, 112 

1,473 

1, 505 

1,057 

981 

1,1 

400 

29 

812 

862 

93 

867 

1,381 

184 

13' 

737 

1,489 

1,256 

1,540 

95 

93 

541 

404 

833 

.')08 

522 

496 

138 

1,188 

1, 433 
392 
203 
3( 

2, 666 
442 
607 

1,161 

1, 064 

500 

3, 451 

487 
1,150 

211 
89 

240 
1,410 






2,312 

2,924 

1,728 

552 

970 

1,716 

984 

4,059 

520 

2,839 

498 

1,163 

948 

174 

1,195 

3,122 

1,523 

692 

398 

1,143 

2, 216 

695 

293 

1,191 

631 

836 

356 

726 

1,254 

2, 221 

731 

1, 103 

1, 7.35 

1, 582 

61 

986 

835 

812 

521 

354 

2,809 

1,867 

1,723 

1,000 

513 

1,0' 

273 

829 

554 

613 

424 

1,226 

2,136 

1,341 

1,489 

1,046 

618 

1, 528 

485 

1, 308 

1, 118 

1,574 

532 

2,098 

570 

715 

568 

1, 024 

947 

585 

3, 232 



Not voting 



Wh'e. Col'd 



262 
224 
324 
142 

33 
184 

89 
571 
110 
221 
204 
385 
10' 
287 
133 
379 

73 
537 

29 
119 
354 
210 
178 
110 

80 
197 

78 
2 

288 

318 

448 

18 

681 

731 

274 

109 

2 

493 

78 

25 

245 

114 

170 

31.= 

142 

63 

32 

44 

42 

13 

77 

515 

590 

14' 

305 

46 

116 

176 

48 

374 

134 

85 

38 

627 

112 

120 

44 

86 

471 

529 

701 



24 



TEST OATH IN VIRGINIA. 



Summary of fhc itumhcr of registered voters, cjc. — Coutiuued. 



Coimty or city- 



Powliatan 

Priiict' Edward . . . 

Priiu'f (iiMiri;!.- 

Priiu'c ^\'illiaIU . .. 

Priucess Auue 

Piilaski 

Kappaliaiinock . . . 

Eichiiionil 

Eoanoke 

Kockbridge 

Eockingliani 

Eussell 

Scott 

Shenandoah 

Smytli- 

Sonthampton 

Spotsylvania 

Stafford 

Siirry 

Sussex 

Tazewell 

AVarren 

AVarwick 

AVashiiigton 

Westmoreland. ... 

Wise 

Wythe 

York 

Korldlk Citv 

Petirsluiriii'ity... 
KichiuoDd City 

Total 



Number of 
registered 
voters. 



White. Col'd 



1,300 

1,836 

1, 329 

356 

983 

416 



552 

726 

1,141 

518 

244 

120 

213 

352 

1,448 

1,138 

286 

695 

1,248 

340 

211 

336 

689 

769 

11 

559 

1,350 

2, 213 

3,186 

7,259 



120, 103 



Number of 
votes east. 



White. 



Col'd. 



523 

831 

575 

948 

762 

745 

974 

656 

933 

2, 237 

2, 980 

1, 217 

1, 322 

1, 948 

1,170 

1,210 

1,409 

934 

555 

616 

1,158 

713 

134 

2,316 

736 

541 

1,545 



1,151 

1, 545 

1,146 

224 

795 

335 

403 

508 

608 

893 

395 

159 

42 

156 

253 

1, 262 

875 

184 

61 

1,144 

264 

138 

261 

389 

670 

8 

386 



435i 1,189 
2,0271 2,034 
1, 863' 2, 764 
6, 362l 5,998 



125,144 97,205 210,577 



1,667 
2,367 
1,536 
1,159 
1,327 
1, 002 

1, 320 
1,156 
1,443 

2, 288 
3,055 
1,305 
1, 319 
1,561 
1,399 
2,411 
2,196 
1,030 
1,117 
1,701 
1,402 

594 

385 

2,539 

1, 332 

531 

1,890 

1,612 

3,871 

4,489 

12, 265 



fH 



7 
9 

176 
13 

214 

65 

20 

8 

98 

788 

118 
19 
31 

474 
24 
54 
78 
75 
55 
42 
15 

250 
10 
35 
74 
18 
18 
10 

168 

119 
54 






1,149 

2 

1,066 

346 

806 

330 

368 

52 

658 

946 

58 

419 

500 

323 

286 

498 

836 

124 

64: 

856 

310 

4 

260 

491 

11 

9G 

425 

1,15' 

1,996 

2,70 

5,996 



9, 136 84, 410 






O p X 






523 

1,734 

555 

814 

739 

691 

989 

603 

831 

2,141 

2,841 

924 

844 

1,696 

1,125 

1,449 

1,409 

937 

548 

889 

1,106 

831 

133 

2,109 

738 

440 

1,455 

459 

2,016 

1,858 

6,271 



124, 360 






1,149 

2 

1,065 

348 

808 

329 

368 

52 

658 

94' 

60 

418 

499 

323 

286 

498 

834 

124 

505 

856 

295 

4 

260 

492 

11 

95 

434 

1,152 

1,999 

2,70' 

6, 0.32 



83, 458 



5- "^ s 



bJCf— ( 



523 

1,737 

555 

814 

738 

695 

989 

603 

834 

2,156 

2,839 

951 

850 

1,696 

1,128 

1,449 

1,405 

936 

548 

889 

1,124 

831 

133 

2,118 

715 

439 

1,454 

465 

2,013 

1,858 

6,252 



Not voting. 



Wh'e. Col'd, 



48 
110 

73 
233 
156 
140 
169 

73 
271 
410 
900 
497 
761 
768 
331 

78 
190 
100 

29 

83 
442 
140 
9 
805 
105 
184 
284 
101 

92 

252 

1,189 



124, 715 24, 637 



149 

291 

183 

132 

188 

81 

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248 

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263 

102 

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73 

75 

300 

99 

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173 

161 

179 

422 

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22, 898 



Headquarters First Military District, 

State of Virginia^ June 16, 1869. 
Sir : I have received your commiimcation of the 12th iiist., and the 
inclosed statement of reasons why the oath of office prescribed by the 
act of July 2, 1862, " should not be exacted from members of the gen- 
eral assembly and State officers to be elected at the same time the con- 
stitution is voted on." I have carefully considered these reasons, but 
can tiiid in thein no grounds for changing the opinion expressed to a 
member of your committee some days since, or for reversing the action 
that 1 have heretofore taken upon precisely the same point. In my 
judgment the reasons presented in this statement do not and cannot 
be made to apply to this question until the constitution becomes the 
controlling law by reason of its ratification by the people of the State, 
and its approval by the Congress of the United States. Both of these 
conditions must first be satisfied, and, until they are, the laws which 
control the district commander in the execution of the duties committed 
to him cannot be superseded or modified by a law which does not 
become effective until it shall have been examined and approved by 
Congress. I have never doubted that this approval AAonhl have the 
effect of dispensing with the reipiirements of the l>th section of the law 
of July 19, 1867, and substituting the oath prescribed by the constitu- 
tion for the officers elected or appointed under it, for that prescribed 
by the law of July 2, 1862; but the district commander has no authority 
to dispense with this oath, or to modify in any other way the laws of 



TEST OATH IN VIRGINIA. 25 

the United States, wliicli control his action ; and the exercise of such 
authority woukl not in any proper sense be an interpretation or con- 
struction of the hiw, but would be the assumption of a ])ower which 
Congress has expressly and very explicitly reserved to itself. 

The dispatch from General Grant to General Meade, which is cited in 
your statement, does not, I think, conflict with this view. Without 
being- familiar with the circumstances under which it was given, I have 
no donbt it related to the constitution after its approval by Congress: 
Upon the passage of the law of June 25, 18G8, to admit the States of 
North Carolina, South Carolina, Louisiana, Georgia, Alabama, and 
Florida to representation in Congress, I assumed that the approval of 
the State convention by the preamble of that law dispensed with the 
oath of ofiice prescribed by the laws of the United States, and ujion re- 
porting- this action to the General of the Army, it was approved by him. 
Although the dates, March 2 and June, 1808, of the dispatches to command- 
ers of the second and third military districts are different, the action 
taken appears to relate to the same'phase of the question, and to be en- 
tirely consistent. I have delayed this answer until 1 could receive 
copies of the dispatches above referred to, but, as they have not reached 
me, I send it now, and will transmit the dispatches as soon as they are 
received. I send with this, however, a copy of General Orders No. 120, 
issued in the second military district. The action taken in that case so 
far as it relates to this question had been approved by the General of 
the Army. 

Very respectfully, sir, your obedient servant, 

E. R. S. CANBY, 
Brevet^ Major General TJ. 8. A., Commanding. 

E. T. Daniel, Esq., Eichniond, Virginia. 

Official copy : 

LOUIS Y. CAZIAEO, 

A. D. C. and A. A. A. G. 



Headquarters First Military District, 

8tate of Virginia, Richmond, Va., July 31, 1869. 
General : I have the honor to acknowledge the receipt of your con- 
fidential communication of yesterday in relation to the test oath in 
Virginia. 

Very resijectfully, your obedient servant, 

ED. E. S. CANBY, 
Brevet Major General Commanding. 
General W. T. Sherman, 

Commanding the Army, &c., Washington, D. C. 



Headquarters Army, Adjutant General's Office, 

Washington, ^eptemher 3, 1869. 
Sir : By direction of the Secretary of War I have ihc honor to trans- 
mit herewith, for your guidance, a copy of the opinion of the Attorney 
Genera], of the 28th of August, 1869, with the suggestion of the Presi- 
dent that you immediately promulgate the result of the election in 



26 TEST OATH IN VIRGINIA. 

Virginia, and inangiirate both the governor and lieutenant governor 
under military authority, provided they can take the required oath. 
By command of General Sherman : 

E. D. TOWNSEND, 

Adjutant General. 
Brevet ]\Iajor General E. E. S. Canby, U. S. A., 

Commanding First Military District^ Richmond, Yirgima. 



[Coiifideutial.] 



Headqitaeters Army of the United States, 

Washington, B. C, July 30, 1869. 

General : The President has submitted the whole question as to 
whether the members of the legislature elected for Virginia are required 
to take the test oath, upon being qualified to take their seats. He 
wishes you to defer the pronudgation of the results of the recent elec- 
tion till you have the decision of the Attorney General, and in case his 
opinion be that the test oath is necessary, then to defer the promulga- 
tion about one month before the meeting of the national Congress, so 
that the law may be modified tliat members elect of the State legisla- 
ture may take their seats and proceed to business. 
Yours, &.Q., 

W. T. S. 

General E. E. S. Cabny. 



War Departivient, 
^Yas}iington City, (no date.) 
General E. B. To^vnsend: The Secretary of War directs that you 
transmit a copy of the inclosed opiuion of the Attorney General to Gen- 
eral Caid)y for his guidance, with the suggestion of the President that 
he immediately promulgate the result of the election in Virginia, and 
that he inaugurate both the governor and lieutenant governor elect 
under military authority, provided they can take the required oath. 

JNO. E. SMITH, 
Colonel and Brevet Major General U. 8. A. 



Headquarters First Military District, 
State of Virginia, Richmond, Va., Septemher 10, 1869. 

Sir : I have the honor to transmit a copy of General Orders ISTo. 101, 
promulgating the results of the election in this State of July 6, 1869, and 
to report, for the information of the General of the Army, that I have 
fixed upon the twenty-first instant for the inauguration of the governor 
elect, in order to give Governor Wells sufticient time to close up the busi- 
ness of his ofiice, and at the same time allow Governor AYalker to make 
any necessary arrangements before the meeting of the legislature. 
Verv respectfullv, vour ol)edient servant, 

' ^ ED. E. s. oa:j^by. 

Brevet Major General U. IS. A., Commanding. 

The Adjutant General of the Army, 

Washingto)!, D. C. 



TEST OATH IN VIRGINIA. 27 

Headquarters First Military District, 
State of Virginia, Richmond, Va., July 10, 1869. 
Sir : I have the lioiior to transmit, for the information of the General 
of the Army, a copy of the correspondence with different persons in tliis 
State in relation to the qnalitications of voters upon, and officers to be 
elected under, the proposed constitution for the State of Virginia. But 
two material points are involved in these questions : 

1. The alleged conflict between certain provisions of these laws as 
they apply both to voters and officers, and the Constitution (article 14 of 
the amendments) of the United States. 

2. Tlie legal effect of the ratification of the proposed constitution by 
the people of the State, and the action required by the 5th section of the 
act approved April 10, 1809. 

Upon the first I have held that, even if there be such conflict, and 
this may be seriously questioned as to the States not represented in the 
Congress of the United States, the question is one over which the dis- 
trict commander has no control, and must be left for appropriate legisla- 
tive action or judicial determination ; and upon the second, that the ap- 
proval by Congress of any proposed constitution is a fundamental con- 
dition of the reconstruction laws, and until that condition is satisfied 
the constitution remains inoperative, and wholly subordinate to the 
provisions of the laws under which it was framed ; that these laws de- 
termine the qualifications of officers, and until they are dispensed with 
by law, or cease to operate in pursuance of law, they nuist he enforced. 
The le'tters marked A 1, 2, 3, and 4, are given as examples of the deci- 
sions upon the first question, and those marked B 1, 2, 3, 4, 5, and 6, of 
the decisions upon the second. I have no disposition to enlarge upon 
the subject, but as these decisions have been criticised as after thoughts, 
and as being in conflict with previous decisions upon the same ques- 
tions by the General of the Army, I have thought it proper to invite at- 
tention to tlie action heretofore taken upon those questions. 

It will be seen, by General Orders Nos. 79 and 83, headquarters second 
military district, dated respectively May 2 and May 12, 1808, that the 
same decision was made more than a year ago, and that the membei s 
of the legislature and other elective officers under the constitution of 
the State, embraced in that district, who were unable to take the oath 
of office prescribed by law, would not be allowed to discharge any ofil- 
cial functions " until the disability has been removed by Congress, or 
unless the oath of office prescribed by the above-cited law (of July 19, 
1807) shall have previously been dispensed with by law, or unless the 
said ninth section shall have become inoperative by the fact that the 
people of the State have been declared by law to be entitled to repre- 
sentation in the Congress of the United States;" and by General Orders 
No. 117, of June 20, and No. 120, of June 30, 1808, that the laws of June 
25, 1808, approving the constitutions of several States and authorizing 
certain action under them, was held to supersede or dispense with the 
oath of office prescribed by the law of July 2, 1802, and recpnred by the 
ninth section of the law of July 19, 1808. It was held then, that the 
recoustruction or i)olitical restoration of the States embraced in the 
operation of the reconstruction laws was wholly under the control 
of the political or legislative department of the government, and con- 
tingent in its successive steps upon the previous action of that depart- 
ment, and compliance with the c;onditions expressed by that action. 

General Orders No. 120, of July 3, No. 131, of July 0, and No. 141, 
of July 20, exhibit the action taken, as the successive steps in the 
H. Mis. De^ 8 4 



28 TEST OATH IN VIRGINIA. 

reconstruction of the States incliKknl in the second military district were 
completed. 

It was held then, that the ()))ligation imi)osed by the Constitution and 
the third section of the law of June 1st, 178!), could be satisfied only by 
an oath or affirmation prescribed by the laws of the United States, and 
that until the oath prescribed by the proposed State constitutions were 
approved by Congress, they were not the prescribed oaths, and did not 
legally imi)ose obligations or involve penalties. I have been unable to 
find anything in the subsequent legislation of Congress to warrant any 
ditfereut conclusion as respects this State. On the contrary, the joint 
resolution of February G-18, 18()9, and the passage of the law of April 
10, 1809, before the approval of the constitution by Congress, and 
without dispensing with the requirement of the ninth section of the law 
of July 19, 1807, or prescribing another form of oath, ai)])ears to ex- 
press very clearly the intention of Congress that this requirement should 
be enforced until the constitution had been examined and approved by 
tluit body. Eligibility to office does not necessarily include the qualifi- 
cations that precede the discharge of the duties of the office ; on the 
contrary, there are ^'ery few inqtortant offices where additional (jualifica- 
tions are not required. The oath ])rescribed by the law of July 2, 1802, 
is such an additional qualification, and its ai>plication to the seceded 
States before they were represented in Congress appears to be the 
natural result of their political relation to the tlnion, independent of the 
requirements of the ninth section of the law of July 19, 1807. With 
two exceptions all the decisions of the General of the Army relating to 
the (]ualifications of voters or officers that I have been able to find were 
made subsequent to the i)assi)ge of the law of June 25, 1808, and ap- 
plied to the constitutions ichich had already been approved hij Congress. 

The first of the exceptions is the decision of March 2, 1808, in rela- 
tion to Florida, and is in answer to a specific inquiry as to the qualifi- 
cations of voters and officers imder, "and to take office after, the adop- 
tion of the constitution." The second is that of Ajuil 29, 1808, in rela- 
tion to Georgia, and also a])])lies to the qualifications of officers and the 
enforcement of the test oath after the approval by Congress of the i)ro- 
liosed constitution. See General Orders No. (51, headquarters second 
military district, dated A])ril IT), 1808. This decision is in effect that, 
after Congress had ap])roved any ])roposed constitution and authorized 
action under it, tlui test oath could not be enforced. Substantially the 
sanu^ decision was subsequently made by me in the second district, and 
ujxm being reported to the General of the Army was ap])rov(Ml by him. 

Next in pertinence is the correspondence in relation to the condition 
of the governments (U'ganized iinder the proposed constitutions, if they 
were allowed to go into operation before Congress had acted on them. 
On the loth of January he decided that the Alabama convention, in pro- 
])osing to elect officers under her new constitution, had only followed an 
established precedent, but added, "the governments elected cannot 
assume authority except under orders from the district commander, or 
after action of Congress upon their constitutions." On the 10th of 
March, 1808, he decided that "voters on the ratification of the con- 
stitution cannot, under the law, be required to take the oath i)rescribed 
by the convention," as it would be in contravention of the acts of Con- 
gress. On the 9th day of May he asked the commander of the third 
district, " Do you think it advisable to appoint civil officers elected at the 
late election in Georgia to relieve all army officers heretofore appointed 
by you?" To this General IVIeade answered: "It was not my intention 
to put in office any of the civil officers recently elected until Congress 



TEST OATH IN VIRGINIA. 29 

bad acted on the constitution. ***** The governor, if put in 
office, couhl not appoint auy one, and woukl have to appoint every one 
through me. * * * Again, all appointees would have to take the 
test oath, and I question whether many of the elected can do this. 
* * * * When the constitution is sent to Congress, if they author- 
ized the civil government going into ofiice in advance of the admission 
of the State, and on the same terms as if the State liad been admitted, 
that is, without requiring the test oath, I think this would be well." 

The same considerations applied to the meeting of the Florida legis- 
lature before Congress had acted on the constitution. 

In the second military district I held that if the legislature of a State 
assembled before its constitution had been approved by Congress, it 
must do so under the conditions imposed by the reconstruction laws ; 
and, to avoid the embarassments resulting from this complication, the 
meeting of the legislature of South Carolina, as appointed by the con- 
vention, was postponed by General Orders No. 82, of May 12, 1868,- 
" until after the Congress of the United States shall have approved the 
constitution under which it was elected." The decisions, June 30 and 
July 8, 18G8, although applying to the qualifications of officers after the 
approval of the constitution under which they were elected, are decided 
as to the character of the governments, until the conditions of recon- 
struction are fully complied with. 

The alleged anomaly of requiring the oath of office prescribed by the 
law of July 2, 1867, after article fourteeu became a part of the Constitu- 
tion of the'United States, is a matter over which the district commander 
has no control. The law has not been repealed, and has been modi- 
fied by the law of July 11, 1808, only so far as it aflects persons whose 
disabilities have been removed by Congress, and it is still enforced 
against all, including those who have never incurred any disabilities, 
who may be ai^pointed to office under the government of the United 
States. 

Until the proposed constitution for Virginia has been approved, there 
are no other oaths or affirmatious prescribed by law for persons ap- 
pointed or elected to office in that State, and I do not see how the obli- 
gation imposed by the Constitution of the United States, and the law 
of June 1, 1789, can be satisfied without taking the oath prescribed by 
the law of July 2, 1862, or in the case of persons whose disabilities have 
been removed, that of July 11, 186S. 

Very respectfullv, vour obedient servant, 

ED. R. S. CANJ3Y, 
Brevet Major General, Commanding. 

The Adjutant General, Washington, D. C. 



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